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TMI Blog1999 (4) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... rice list. Later the jurisdictional range officer served a show cause notice on the appellants proposing to revise the assessable value to Rs 24,09,333/- being the earlier assessable value as per the approved price lists with consequential differential duty demand of Rs 2,51,477.61. This was confirmed after adjudication by the Assistant Collector. The contention of the appellants had been that the impugned items slow movers and non-standard which remained unsold for over a year and hence with a view to clearing the goods they offered them in a lot for a sole consideration of Rs 4,81,338/-. They contended that they filed price list under part I inadvertently instead of under Part II and that the assessable value indicated by them for approval is the sole consideration for sale. The Assistant Collector took the view that the assessable value of the impugned goods could not be anything other than the value at which the products are normally sold. He further opined that unless the product is proved to be either sub-standard, deteriorated or scrap, there can be no reason for lowering the value. Appellants had relied upon several case laws before the Collector (Appeals) who did not agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase goods when goods had value and market. He submitted that the price list can be revised and subsequent filing of the part II price list by the said buyer is required to be accepted. This view was taken by the Tribunal in the case of Castrol India Ltd. v. C.C.E. as reported in 1997 (92) E.L.T. 145 wherein the Tribunal has held that sale being made to industrial consumer and the Tribunal accepted the price which has been offered as negotiated with the customer and after finalisation of the price , the appellants having filed the price list under Part II and claimed assessment at lower price should be accepted. The reasons given is that substantive benefit provided under law cannot be denied so long as it can be shown that the parameters which entitled the assessment under Section 4(1)(b) are satisfied. The Tribunal held that the sale being to industrial consumer and so long as it can be shown by the appellant that the sale was in the normal course of business the lower price agreed to for sale between the appellants and the consumer would be acceptable. The learned Counsel further relied upon the judgment of the Tribunal in the case of DCW Ltd. v. C.C.E. as reported in 1992 (62) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lack of uniformity is not found on any extra commercial consideration. The learned Counsel also relied upon the case of Ester Industries Limited v. C.C.E. as reported in 1996 (81) E.L.T. 260 wherein it has been held that price for sale at factory gate being available for certain varieties of polyester film, ex-depot price of identical goods even if higher is not to be taken into consideration. In this case the Tribunal relied upon the judgment of the Hon ble Supreme Court in the case of Indian Oxygen Ltd. v. C.C.E. as reported in 1988 (36) E.L.T. 723 (S.C.) and it has been held wholesale ex-factory price cannot be rejected simply because higher price exists for consumers of a particular class of buyers unless buyer is a related person or consideration flowing back from purchaser to manufacturer. He also relied upon the judgment in the case of Shriram Food Fertilizers Ltd. v. C.C.E. as reported in 1996 (85) E.L.T. 34 wherein based on the earlier judgments, the Tribunal held that the wholesale dealers in each zone can in the facts and circumstances of the case be considered as different classes of buyers and the Tribunal relied upon the judgment of the Hon ble Delhi High Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is required to be accepted. Further if there is a separate price list filed under Part II subsequently that is required to be accepted as held by the Tribunal in the case of Castrol India (supra). On accepting this proposition, the price of the item, which were slow movers which remained unsold for over a year, and the appellants, having called for tenders and accepted the same on behalf of the industrial consumer, can be accepted, in the light of the judgments noted above. Such sales to industrial consumers, when there is no extra sale consideration, has been accepted by the Tribunal in the noted judgments. In the case of Ind-Sphinx Precision Pvt Ltd. (supra) the Tribunal analysed the situation as arisen from the sale, under Section 4 of the C.E. Act, and accepted the proposition that there can be different assessable value for same type of goods. The Tribunal laid down various reasons such as (i) status of the buyer, (ii) class of buyer, (iii) quantity of goods sold (iv) favourable or unfavourable market conditions in a particular region or at a particular point of time (v) financial crisis (vi) cut throat competition (vii) introduction of the product in a new region. The Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercial consideration. Therefore, the ruling of the Hon ble Supreme Court would apply to the present case of sale also. In the case of Govt. of India v. MRF Ltd. as reported in 1995 (77) E.L.T. 433 (S.C.), the Hon ble Supreme Court on an analysis of Section 4 has laid down the determining factors for arriving at the assessable value in different situation. Para 5 of the judgment is noted herein below : 5. A reading of Section 4 lends itself to the following analysis : Where the duty of excise is chargeable on excisable goods with reference to their value, the normal price at which such goods are sold shall be deemed to be the value of such goods subject to other provisions of Section 4. Normal price means the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal. If, however, the buyer is a related person and the price is not the sole consideration for the sale, the price cannot be treated as the normal price . In the case of sale to or through related person , normal price shall be determined as provided in proviso (iii) to Section 4(1). It is, however, not necessary that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packed condition. Value does not, however include the cost of packing, which is of a durable nature and is returnable by the buyer to the assessee. Packing shall be understood as defined in the explanation to Section 4(4)(d)(i). Value does not include the amount of duty of excise, sales tax and other taxes, if any, payable on such goods. Value does not also include, subject to such rules as maybe made, trade discount allowed in accordance with the normal practice of the wholesale trade at the time of removal of such goods. To qualify as a trade discount, the discount should not be refundable on any account whatsoever. Wholesale trade means sales to dealers, industrial consumers, government, local authorities and other buyers who purchase their requirements otherwise than in retail. On reading of the above para, it is clear that different prices can be adopted for different buyers. The situations confronted by the appellants demanded sales to be carried, out by lot to an industrial consumer i.e. M/s. Best Drill Centre and they have to be considered as a separate class of buyer and the appellants in this case had filed price list under Part II and the same is requi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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